Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH NUMBER 162
	OPINION OF J. BECKETT QC (Sitting as a Temporary Judge) in Petition of SA (AP) Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: for Judicial Review of a decision of the Secretary of State dated 14 December 2010 to refuse to accept representations on behalf of the petitioner as a fresh claim for asylum. ­­­­­­­­­­­­­­­­­________________

Petitioner: Caskie; McGill & Co

Respondent: Haldane, Q.C.; Office of the Solicitor to the Advocate General

5 October 2011

Introduction

[1] In this petition for judicial review, the petitioner (SA), a citizen of Iraq, seeks reduction of a decision of the Secretary of State for the Home Department dated 14 December 2010 to refuse to accept representations on his behalf as a fresh claim. The first hearing proceeded on the original petition, No. 1 of process, and answers, No. 9 of process. Although there was amongst the papers a minute of amendment, counsel did not move the amendment. The focus of the petition is the aspect of the claim relating to article 8 of the European Convention on Human Rights and Fundamental Freedoms. Mr Caskie, Advocate appeared for the petitioner and Miss Haldane QC for the respondent.

The facts of the case

[2] The petitioner, who is now 37 years old, entered the United Kingdom illegally on 22 January 2002 and made a claim for asylum which was refused on 4 February 2003. He appealed unsuccessfully and became appeal rights exhausted on 2 March 2004. The petitioner absconded on 19 March 2003. On 2 July 2007 he attended at a police station and said that he had overstayed. At that time no action was taken because removals to Iraq had been suspended by the Secretary of State. Further representations were submitted by the petitioner on 5 November 2007, 18 February 2008 and 23 February 2010. His claim was refused in a letter of 26 February 2010 and the petitioner then sought judicial review, and the Secretary of State withdrew that decision before issuing a further decision, on 14 December 2010, which is the subject of this petition.

[3] The petitioner's father and brother arrived in the United Kingdom on 15 June 2000 and claimed asylum and were granted indefinite leave to remain on 29 July 2005. The petitioner's mother and his two younger brothers were granted leave to enter as the spouse and children of the petitioner's father on 10 October 2007 before he died on 27 October 2007. The petitioner's mother was then granted indefinite leave to remain, which had already been granted to the two younger brothers. His brothers are now aged 25, 18 and 15. The petitioner does not live with his mothers and brothers.

[4] Mr Caskie explained that the petitioner, as oldest son, has responsibilities caring for his mother. He is involved in the upbringing of his youngest brother. He formed a relationship with Sharon Dougan, a British citizen, and they became engaged in 2009. They do not live together. It is their intention to marry when the petitioner's immigration status is resolved. Miss Dougan works and has a disabled mother whom she plays a part in looking after.

The decision letter of 14 December 2010

[5] This twelve page document gives the decision at pages 1-4 and outlines reasons under a heading 'Consideration of Submissions' at pages 5-12, dealing with the article 8 claim at pages 6-10. At pages 11 and 12 the terms of Immigration Rule 395C are set out and each of the relevant factors is examined in turn. At page 2 it is explained that it was accepted that further submissions had not resulted in a grant of leave but that they had been treated as significantly different to material already considered, but nevertheless not amounting to a fresh claim.

[6] At page 6 it is said that the claim was considered using the five stage test outlined in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, and that it is accepted that the petitioner has established a private life and that an Immigration Judge would so find. Then it is stated that an Immigration Judge would not accept that the petitioner had established family life within the United Kingdom with his fiancé as they have not set up home together, or with his mother and three brothers as there is no evidence that they are reliant on him.

[7] At page 7 the letter goes on to consider how an Immigration Judge would approach the question of whether refusal of leave to remain would interfere with family and/or private life, on the assumption that there was family or private life, and reaches certain conclusions:

"It is considered that a new Immigration judge would accept that your client may have established a private life in the United Kingdom and that his removal to Iraq may interfere with that private life in a sufficiently serious manner to engage Article 8(1). It is not considered that a new Immigration Judge would accept that your client has established a family life in the United Kingdom and therefore his removal to Iraq would not interfere with family life."

[8] It is then said that an Immigration Judge would conclude that any interference would be in accordance with the law.

[9] There follows an analysis of whether removal would be justified by permissible aims of the maintenance of economic well being and the need to maintain effective immigration control. It is observed that a new Immigration Judge would note that the ties that the petitioner has built up in this country were established when he had no right to be in the United Kingdom and that these ties could be maintained through means such as communication by letter, e-mail and telephone.

[10] The family relationships and circumstances on which the petitioner had founded are then narrated, including his claim that as eldest son it is his responsibility to look after his mother and brothers. It is said that a new Immigration Judge would note that whilst there is information that he has been engaged to Miss Dougan since February 2009, they do not live together. The conclusion is reached that:

"It is considered that a new Immigration Judge would conclude that your client's removal is in the pursuit of the permissible aim of maintaining effective immigration control as set out in Article 8(2) and the interference with your client's private life is in accordance with the law."

[11] The letter goes on to deal with proportionality and begins with a quotation of paragraph 20 of the opinion of Lord Bingham of Cornhill in Huang v Secretary of State for the Home Department [2007] 2AC 167, before continuing:

"A new Immigration Judge would accept that during your client's time in the United Kingdom he has established a private life but would conclude that interference can be justified in your client's case. A new Immigration Judge would not accept that your client has established a family life in the United Kingdom, but even if he had established family life a new Immigration Judge would conclude that any interference can be justified in your client's case.

Your client's private and family life was established when he had no legal right to be in the United Kingdom. Your client entered the United Kingdom clandestinely on 22 January 2002 and claimed asylum. Your client's application for asylum and human rights was fully considered and rejected by both the Secretary of State and the independent judiciary on 5 February 2004. The adjudicator at your client's appeal hearing stated that 'In summary I found the appellant to tell the truth about his membership of the police. I believe that he was a police officer but I do not believe any other aspect of his case at all.' Your client evaded immigration control by failing to comply with reporting restrictions and maintaining contact with the Home Office between November 2003 and July 2007. Your client was advised about voluntary returns with the aid of the Internal Organisation for Migration on 2 July 2007 but did not pursue this course of action. Your client received a caution in February 2006 for criminal damage and was also found guilty of assault in March 2010 and admonished. Your client then submitted an application on 5 November 2007 based on the fact that he is responsible for his mother and brothers as his father died on 28 October 2007."

The decision letter goes on to conclude that:

"A new Immigration Judge would conclude that the decision to remove your client is in order to protect the wider interests and rights of the public as it is vital to maintain effective immigration control. In pursuit of that aim and having weighed up your client's interests, a new Immigration Judge would conclude that any interference with your client's private and family life would be a legitimate, necessary and proportionate response and in accordance with the law. A new immigration judge would not accept that your client's removal would fail to strike a fair balance or constitute a disproportionate interference in respect to his private and family life. Whilst it may be your client['s] wish to remain in the United Kingdom and continue with his private and family life a new Immigration Judge would not consider that this factor outweighs the need for effective immigration control."

[12] On page 9 the decision maker considers the cases of Chikwamba v Secretary of State for the Home Department [2008] 1 WLR 1420, Book-Betts v Secretary of State for the Home Department [2009] 1 AC 115 and EB (Kosovo) v Secretary of State for the Home Department [2009] 1 AC 1159. Chikwamba is said to be distinguishable on the basis that the petitioner has no dependent children in the United Kingdom and because it was not being suggested that he should apply for entry clearance from Iraq. [13] Under reference to Beoku-Betts, the effect of removal on other family members is considered:

"Your client's mother was solely responsible for looking after her children when her husband left Iraq in June 2000 until she joined him in the United Kingdom in October 2007. Furthermore, your client was not responsible for looking after his mother and siblings when his father left Iraq in 2000 as he was living in Iran before coming to the United Kingdom in 2002. Two of your client's brothers are aged 24 and 18 years old and are therefore adults. Your client has not provided any reasonable explanation why his adult brothers cannot provide support to their mother and younger brother. Your client has also stated that he has two sisters and a brother still residing in Iraq but he does not claim to feel responsible for them in the absence of his father. A new Immigration Judge would conclude that your client can continue to provide emotional support and maintain his relationship with his mother and brothers through phone calls, letters and emails. Furthermore, there is no reason why your client's mother and brothers cannot join your client and the rest of the family in Iraq."

[14] The position of Miss Dougan, and their relationship is separately examined.

"A new Immigration Judge would note that although your client has been in a relationship with Sharon Dougan since July 2008, they are not living together and do not have any children. Your client states that Miss Dougan would not be able to accompany him to Iraq as she looks after her mother who is disabled. However your client has not provided any further evidence that Miss Dougan's mother is disabled or that she requires care. Furthermore, your client has not provided a reasonable explanation as to why Miss Dougan's sister, who lives with her mother cannot help to care for her. Miss Dougan has submitted a letter in support of your client's case but has not stated that she would not accompany him to Iraq nor has she mentioned that her mother is disabled and she provides care for her. Furthermore, your client has stated that he discussed his immigration status with Miss Dougan a couple of months after they met and that she still wanted to proceed with the relationship. A new Immigration Judge would be of the opinion that your client and Miss Dougan entered into a relationship in the full knowledge that your client's immigration status was precarious and that he may be removed at any time."

[15] Some delay in dealing with a further application made on 15 November 2007 is conceded, but it was regarded as distinguishable from EB (Kosovo).

The agreed legal background

[16] Article 8 of the Convention provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

[17] In Razgar at, paragraph 17, the House of Lords summarised the questions to be asked by an adjudicator hearing an appeal against removal on article 8 grounds. It said:

"In a case where removal is resisted in reliance on article 8, these questions are likely to be:

(1) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?

(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?

(3) If so, is such interference in accordance with the law?

(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"

[18] With reference to Maslov v Austria 1638/03 [2009] INLR 47 and Üner v The Netherlands (2007) 45 EHRR 14, Mr Caskie submitted that, in an immigration case where article 8 was engaged, recognised considerations must be taken into account in assessing proportionality, the fifth of the questions in Razgar:

i) the nature and seriousness of the offence committed by the applicant;

ii) the length of the applicant's stay in the country from which he or she is to be expelled;

iii) the time elapsed since the offence was committed and the applicant's conduct during that period;

iv) the nationalities of the various persons concerned;

v) the applicant's family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple's family life;

vi) whether the spouse knew about the offence at the time when he or she entered into a family relationship;

vii) whether there are children of the marriage, and if so, their age; and

viii) the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.

Two further considerations, which were implicit in those enumerated, were also identified

·                   the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and

·                   the solidity of social, cultural and family ties with the host country and with the country of destination.

[19] I noted that in one of the cases to which I was referred, ZH (Tanzania) v Secretary of State for the Home Department [2011] 2WLR 148, Baroness Hale of Richmond considered how these factors would apply in an ordinary immigration case where a person was to be removed because he has no right to be or remain in the country, at paragraph 18:

"... Factors (i), (iii) and (vi) identified in Boultif and Uner are not relevant when it comes to ordinary immigration cases, although the equivalent of (vi) for a spouse is whether family life was established knowing of the precariousness of the immigration situation ..."

[20] Mr Caskie drew my attention to the terms of Immigration Rule 353:

"When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."

The issue in this case, where it was plain that the claim had been refused and where it was accepted that the submissions made on behalf of the petitioner were significantly different to material already considered, was whether taken together with previously considered material they created a realistic prospect of success for the petitioner. Mr Caskie founded on No. 6/3 of process, a copy of internal guidance used by the United Kingdom Border Agency, and he referred to page 16 where it is acknowledged that the threshold of 'realistic prospect of success' was a low one, the test was somewhat modest. In R (AK(Sri Lanka) ) v Secretary of State for the Home Department [2010] 1 WLR 855, Lord Justice Laws, in giving the opinion of the Court of Appeal, in paragraph 34 had said that: "Realistic prospect of success" means only more than a fanciful such prospect."

[21] Mr Caskie recognised what had been said by an Extra Division in KD v Secretary of State for the Home Department 2011 SLT 645, which affirmed that the decision by the Second Division in FO v Secretary of State for the Home Department 2010 SLT 1087, continues to bind Outer House judges. In delivering the opinion of the court in FO, Lord Mackay of Drumadoon explained that a decision of the Secretary of State under Rule 353 as to the existence of a fresh claim for asylum can be challenged before the court only by way of judicial review. At paragraph 23, the court accepted guidance to be found in paragraphs 10 and 11 of the opinion of Lord Justice Buxton in the Court of Appeal in WM(Democratic Republic of Congo) v Secretary of State for the Home Department [2007] Imm AR 337.

[22] Mr Caskie founded on what was said by Lord Hodge in RA v Secretary of State for the Home Department [2011] CSOH 68 as he considered the effect of the decision in KD, at paragraphs 18 and 19 of his opinion;

"... Accordingly, the court does not itself answer the question whether there is a realistic prospect of success in an appeal before an Immigration Judge but asks whether the Secretary of State was unreasonable in reaching the view that there was not.

19 Having regard to the forensic character of the judgement which the Secretary of State must make and the low level of the hurdle that the applicant has to surmount, it is difficult to foresee circumstances in which the court would consider that there was more than a fanciful prospect but nonetheless hold that the Secretary of State could reasonably reach the opposite view. Thus in practice the question, however posed, is likely to lead to the same answer. But the requirement that there be a finding of Wednesbury unreasonableness, or that another ground of review be made out, may better serve to keep the court's consideration of Rule 353 within conceptual structure of judicial review.'

Mr Caskie submitted that, given that the court must exercise anxious scrutiny, the decision as to the rationality of the decision by the Secretary of State and the court's own view on realistic prospect of success are likely to be one and the same.

[23] Miss Haldane did not take substantial issue with Mr Caskie's analysis, but she stressed that the court's function in a case of this kind was a reviewing function, it was not for the court to make its own decision on the merits of the case. The court is bound by what was said in KD at paragraph 7. She founded on WM(DRC) as setting out the proper approach to a Rule 353 case. Care had to be taken not to be influenced by the approach taken in cases, such as Razgar, where the court exercised full appeal powers. Accordingly, whilst the five Razgar questions were relevant in this case, it was not for this court to answer them for itself, but to review the decision of the Secretary of State. The decision could only be reduced on Wednesbury grounds. Miss Haldane referred to the Court of Appeal having taken the same approach in R (On the application of TK) v Secretary of State for the Home Department [2009] EWCA Civ 1550. Lord Justice Laws, in giving the opinion of the court, observed in paragraph 9 that in relation to Rule 353 the court's supervisory role is fulfilled by a Wednesbury approach albeit tempered by the demands of anxious scrutiny. For completeness Miss Haldane also referred to Associated Provincial Picture House Limited v Wednesbury Corporation [1948] 1 KB 223.

[24] Mr Caskie referred to the opinion of Lord Bingham of Cornhill in delivering the opinion of the House of Lords in, EB (Kosovo), and particularly the reference to Huang v Secretary of State for the Home Department [2007] 2 AC 167. It followed, he submitted, that article 8 cases are fact-specific and must be treated as such, a proposition with which Miss Haldane agreed.

Submissions for the petitioner
[25] In the course of his submissions thirteen detailed arguments were developed by Mr Caskie.

[26] His first argument began with an examination of what was said by Lord Bingham in EB (Kosovo) about the effect of delay, in paragraphs 13-16, and by Lord Hope of Craighead, at paragraphs 26 and 27, where he said that in an assessment of proportionality under article 8, the weight which would otherwise be given to the requirements of firm and fair immigration control may be reduced if delay is shown to be due to a system which is dysfunctional. Baroness Hale of Richmond had come to a similar conclusion in paragraph 32. Mr Caskie also founded on Secretary of State for the Home Department v Omar [2009] 1 WLR 2265 and submitted that since no action had been taken against the petitioner after he surrendered to the police in 2007, this might be viewed as indicative of a systematic failure which may have the effect described by Lord Hope in EB (Kosovo). In this case the decision maker should have explained why that consideration was not taken into account.

[27] The Secretary of State had been wrong to write at page 9 '...there was no significant delay in dealing with and disposing with his asylum application.' The Secretary of State had taken no action from 2007 onwards. There was a delay from February 2010 until a new decision letter was issued in December 2010. Removals to Iraq had not started until 2009, and therefore the petitioner was not in a position where he could have been removed when the relationship with the petitioner's current fiancé started and this ought to have been taken into account.

[28] With reference to the part of the decision letter summarised at paragraph 9 above, Mr Caskie submitted that the Secretary of State had referred to ties being established when the petitioner had no right to be in the United Kingdom. She ought to have reduced the weight to be accorded to the need for immigration control in light of failures by her own department to take action against the petitioner even if, as he conceded, she was entitled to weigh his immigration history against the petitioner.

[29] Mr Caskie's second argument was that an error was demonstrated by what was written at page 10 of the letter, 'Your client's removal was prevented by him absconding...' when in reality the petitioner could not have been removed because of the suspension of removals to Iraq between 2004 and 2009 This was taking account of an irrelevant factor.

[30] In his third argument Mr Caskie again referred to the part of the decision letter summarised at paragraph 9 above. He submitted that by identifying economic well being as the justification, the decision fell foul of the comments of Lady Hale in ZH (Tanzania). Mr Caskie seemed to have in mind paragraphs 28-33 of her opinion.

[31] Mr Caskie founded on ZH (Tanzania) and R (on the application of Mansoor) v Secretary of State for the Home Department [2011] EWHC 832 (Admin) in developing his fourth argument. He submitted that the interests of a child must be considered first and that where there are factors strongly in favour of a claim, general considerations of economic well being are unlikely to be of great weight. In this case the Secretary of State should have first examined the best interests of the petitioner's 15 year-old brother and, to a lesser extent, his fiancé. There was no reference to the interests of the child in the decision letter which meant that a relevant matter had been left out of account. Mr Caskie pointed out that although the claimant ZH had a very bad immigration history, her application succeeded in spite of that. When the petitioner's family life was considered, or if matters were looked at through the lens of private life with the network of family relationships forming part of it, an Immigration Judge might well conclude that these article 8(1) rights were sufficiently strong to permit the petitioner to remain in the United Kingdom when balanced against the comparatively weak justification of economic well being.

[32] In his fifth argument, Mr Caskie submitted that the decision of the European Court of Human Rights in Boultif v Switzerland (2001) 33 EHRR 50 required to be taken account of. That was a case in which an Algerian man, who had married a Swiss woman, committed offences in Switzerland which led the authorities to decline to renew his residence permit. Accordingly permanent expulsion from Switzerland was being considered. Amongst its evaluation of all of the relevant considerations, the court said this

"52. The Court has next examined the possibility for the applicant and his wife to establish their family life elsewhere.

53.             The Court has considered, first, whether the applicant and his wife could live together in Algeria. The applicant's wife is a Swiss national. It is true that she can speak French and has had contact by telephone with her mother-in-law in Algeria. However, the applicant's wife has never lived in Algeria, she has no other ties with that country, and indeed does not speak Arabic. In these circumstances she cannot, in the Court's opinion, be expected to follow her husband, the applicant, to Algeria."

If the Secretary of State had suggested that the petitioner's fiancé could go with him to live in Iraq, that was taking into account an irrelevant matter. Mr Caskie did not identify which passage in the letter he was referring to but it may have been the passage in the letter which I have quoted at paragraph [14] above.

[33] Mr Caskie's sixth argument was that in noting that ties could be maintained by other means, there was a failure to note that refusal of leave to remain would fundamentally alter the nature of relationships. There was an absence of a conclusion as to the quality of the petitioner's relationship with Miss Dougan.

[34] With reference to the opinion of an Extra Division given by Lord Reed in KBO v Secretary of State for the Home Department [2009] CSIH 30, Mr Caskie developed his seventh argument. He submitted that the decision maker had made the same mistake which was identified at paragraph 17 of that case, of treating a 'domestic' article 8 claim as a 'foreign' article 8 claim. In order for the latter to succeed it would be necessary for the petitioner to establish "a very grave state of affairs, amounting to a flagrant or fundamental breach of the article, which in effect constitutes a complete denial of his rights", before it could be decided that the admitted interference with the appellant's private life would have consequences of sufficient gravity to engage article 8. In the present case the decision letter suggested that the approach of the Secretary of State was to search for a flagrant denial of rights.

[35] Mr Caskie referred to Chikwamba as the basis of his eighth argument. He sought to distinguish the petitioner's immigration history from that of Ekinci, referred to in paragraph 29. He examined the leading opinion of Lord Brown of Eaton-under-Heywood, and the other opinions, in some detail. With reference to paragraph 42, he submitted that if the petitioner were to apply for Entry Clearance from Iraq, he would be unable to give live evidence in any appeal and so immigration officials in this country are much better placed to assess his claim than Iraqi based officials. Mr Caskie submitted that the ratio of the case was found in paragraph 44:

"I am far from suggesting that the Secretary of State should routinely apply this policy in all but exceptional cases. Rather it seems to me that only comparatively rarely, certainly in family cases involving children, should an article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad ..."

[36] Mr Caskie contended that despite what was said by the House of Lords in Chikwamba, the Secretary of State still applies a presumption that applicants who are in the United Kingdom unlawfully must be returned to their country of origin to make an application for Entry Clearance. In due course, Miss Haldane refuted that suggestion and produced a copy of a Border Agency 'Casework Instruction' of 7 August 2008 which confirmed that the position had changed in light of the judgment in Chikwamba. Mr Caskie had not been aware of this and withdrew his suggestion. Once that document had been exhibited, Mr Caskie submitted that it contained, on page 3, a recognition that Chikwamba had relevance in private life cases under article 8, even if there was no family life. This undermined Miss Haldane's position he submitted. Mr Caskie submitted that the principle in Chikwamba also applied in cases where there were no children, with reference to paragraph 19 of Blake LJ's opinion in Mansoor and his reference there to the case of MA (Pakistan) v Secretary of State for the Home Department [2009] EWCA Civ 953. Mr Caskie did not advance any separate argument with reference to that part of paragraph 32 of the petition which refers to a failure to consider Foreign and Commonwealth Office Travel Advice and I was not referred to that advice.

[37] In his ninth argument, Mr Caskie referred to RG (Nepal) v Secretary of State for the Home Department
[2011] Imm AR 84, particularly at paragraphs 22-28. From this decision it could be deduced that whether a person has family life with others is not determined by either the place of residence or any dependence that exists between family members. Whether family life exists is a complicated question of fact and degree. Even if it did not exist, family relationships ought to be treated as an aspect of private life. In the present case, specific consideration should have been given to the relationships between the people affected and if they had not been given weight, the decision was erroneous in law and irrational. It should be noted that in Kugathas v Secretary of State for the Home Department [2002] EWCA Civ 31, on which Miss Haldane relied, the level of contact which was in that case being interfered with was exceptionally low, consisting of one visit by a sister and telephone calls. In the example given by Lord Justice Simon Brown at paragraph 29 of Kugathas, could be found confirmation that people who do not reside together may still be deemed to enjoy family life together. With particular reference to paragraph 20 of Kugathas, when it came to considering whether there was family life, the Secretary of State required to determine that, given the most benign interpretation to the factual evidence, it was not possible to find that it amounted to family life, before that aspect of the claim could be rejected.

[38] With reference to the part of the letter which I have summarised at paragraph 6 above, Mr Caskie submitted that this demonstrated that the Secretary of State considered that cohabitation and dependency were prerequisites for family life which was a clear error of law as could be deduced from the decision and reasoning in RG (Nepal), particularly at paragraph 28. If the Secretary of State had erred in answering the first Razgar question, then when she came to consider the fifth Razgar question, proportionality, she had erred by failing to take account of all relevant matters.

[39] In the decision letter at page 9, where Beoku-Betts is considered, the Secretary of State had erred by treating the attaining the age of 18 as operating as a switch which turned off family life. There was a further failure to consider private life.

[40] In his tenth argument, Mr Caskie referred to the determination and reasons given by an Upper Tribunal (Immigration and Asylum Chamber) chaired by Lord Justice Sedley, MB v Secretary of State for the Home Department
[2010] UKUT 282(IAC). Mr Caskie explained that the headnote to the decision is prepared by the tribunal itself, and it was this which he asked me to have regard to:

"In an Article 8 case, when balancing the demands of fair and firm immigration control against the disruption of the family or private life of a person if removed for non-compliance with the Immigration Rules, the nature and degree of the non-compliance may well be significant."

On this basis, Mr Caskie submitted that the Secretary of State ought to have considered which Immigration Rule the petitioner was in breach of, and how significant that was. He made no other submissions in support of paragraph 40 of the petition.

[41] In his eleventh argument, Mr Caskie submitted that in the passages which I have quoted at paragraph 11 above, only factors negative to the claim had been considered, none of the favourable aspects had been put in the balance. This failure to pay equal attention to such factors demonstrated an absence of anxious scrutiny.

[42] Mr Caskie's twelfth argument was that in referring to an absence of corroboration that Miss Dougan's mother was disabled and required care, in the passage which I have quoted at paragraph [14] above, the Secretary of State had failed to consider that an Immigration Judge might believe information from Miss Dougan and that corroboration was not required.

[43] In Mr Caskie's thirteenth argument, he contended that terms of the decision letter disclosed a general failure to examine issues from the perspective of what an Immigration Judge might conclude, and a failure to recognise that he might come to conclusions different to those of the Secretary of State.

Submissions for the respondent

[44] Miss Haldane's broad submission was that under close scrutiny it could be seen that the decision was not flawed in its treatment of the article 8 claim. The proper approach was to consider the substance of the decision, and not its form, and to consider the letter as a whole and determine if the criteria from WM (DRC) had been met; whether the Secretary of State had asked the right question and whether the decision had been imbued with anxious scrutiny. She stressed that the decision on a 'fresh claim' could only be made on the basis of the information available, there was an onus on the petitioner to put all material which may support his application before the Secretary of State and it was not for the decision maker to fill the gaps or speculate.

[45] Miss Haldane turned to deal with some of the specific criticisms which had been made. She submitted, with reference to their facts, that Chikwamba and Mansoor were entirely different cases and the decision maker had been correct to recognise this. Chikwamba related to whether it was a proportionate decision to require a woman to leave a young child and to go back to the harsh and unpalatable conditions of Zimbabwe, where her husband could not return, or to take her child with her for the purpose of seeking entry clearance which was a formality as she would get clearance in any event. The petitioner's is not a case where it is suggested that he should go back to apply for entry clearance and that it will be a formality.

[46] On the question of family life, Miss Haldane submitted that it is only rarely that a relationship between an adult woman and her adult son who is no longer living with her, and is not living with his siblings, will constitute family life in the article 8 sense. The case of RG was very different on its facts as the applicant in that case had always lived at home with his blood family and he was being supported by them and was financially dependent on them. The proper approach was to be found in Kugathas and Etti-Adegbola v Secretary of State for the Home Department [2009] EWCA Civ 1319. She founded particularly on what was said in her opinion in Kugathas by Arden LJ at paragraph 24.

[47] Since there was no evidence of more than the normal emotional ties between the petitioner and his family members, family life was not constituted for the purposes of article 8. The engagement was not sufficient to constitute family life and it should be borne in mind that both parties entered into the relationship in the knowledge of the petitioner's precarious immigration status. It could not be deduced from Chikwamba that a decision would necessarily always be disproportionate where it separated an adult from a fiancé and other relatives. Each case is fact-sensitive.

[48] Whilst the petitioner relied on the fact of having a brother aged 15, they did not live in the same house and there was no evidence of dependency or disability or anything to take the relationship out of the ordinary and this relationship did not constitute family life for the purposes of article 8 according to the case-law. If there was some special feature of this relationship which might have tipped the scales in favour of the petitioner, it had not been identified to the Secretary of State. On the basis of the information available to her, the position of this boy was not in any way analogous to the children in ZH (Tanzania) and, given the findings about family life, it was not necessary to deal separately with his interests.

[49] So far as private life was concerned, the decision maker had taken this into account and had noted all that could be said in favour of the petitioner including the date of the engagement and letters of support. Weight had been given to these factors. That was all that was required, it was not necessary to state individual conclusions on each point.

[50] By recording the fresh representations, the material favourable to the petitioner was being noted and had not been left out of account. The decision maker had also listed factors against the petitioner's claim and had come to a conclusion. It was plain on considering the letter as a whole that the proper test was borne in mind and that proper criteria were applied.

[51] The decision maker had correctly applied the ratio of EB (Kosovo) and there was no merit in this aspect of the challenge. It had to be recognised that it was not possible to remove the petitioner before removals to central Iraq, where he came from, re-commenced in October 2009. Since then, time had been taken up with fresh representations, made on more than one occasion, and responses to them. There was no delay analogous to that in EB (Kosovo). There could be no question of a feeling of permanence being created because the claim process was ongoing and the petitioner's status was unsettled during that time as the petitioner and his fiancé had recognised.

[52] In conclusion, Miss Haldane submitted that the challenge did not satisfy the test of unreasonableness as it should be understood from Wednesbury, WM(DRC), TK, FO and KD. It was without merit and the petition should be refused.

Discussion
The first argument for the petitioner

[53] In considering Mr Caskie's submissions, it is useful to have in mind the facts of EB (Kosovo). In that case, a claim for asylum made by a boy of 13 took almost five years to be determined, on account of a series of failures by the Secretary of State, by which time he had turned 18 and had lost the opportunity of being granted exceptional leave to remain on that basis. His cousin, who had arrived at about the same time as him in similar circumstances, was timeously granted exceptional leave to remain. The applicant's claim had been woefully mishandled and could be shown to be the result of a dysfunctional system. The period of delay which had the various effects described by Lord Bingham in paragraphs 14-16 of his opinion, was delay by the Secretary of State in response to an application. Mr Caskie referred to this case at length, but his main point seemed to relate to what Lord Bingham had said in paragraph 16 and Lord Hope at paragraph 27.

[54] It is difficult to find much resemblance between this case and EB (Kosovo). The petitioner could not have been removed to the part of Iraq from which he comes between his handing himself in 2007 and late 2009. By that time the Secretary of State had received an application on 5 November 2007 on the basis of the case of Bakhtear Rashid. That part of his claim was ultimately refused on 26 February 2010 and is not challenged. Further representations were made on 8 and 28 February 2008. To this point the relationship with Miss Dougan had not commenced and it is apparent from the terms of No 7/1 of process, that the petitioner's former solicitors' letter of 8 February 2008 was asserting family life on the basis of a relationship with a different partner. A letter from the petitioner's new solicitors dated 18 September 2009 was followed up with the provision of further information on 23 February 2010. It must be questionable to what extent the Secretary of State can be criticised for taking time to consider a series of representations, based on different facts and legal propositions. I was not addressed on this in any detail and Mr Caskie focussed on a discrete period of delay.

[55] The petitioner's claim was refused on 26 February 2010 but that decision was conceded on 11 June 2010 in judicial review proceedings, before the decision was re-made on 14 December 2010. It might be said that there was some delay for which the respondent bears some responsibility over this period of ten months, but I do not accept that there has been shown dysfunction which might reduce the weight to be given to the importance of effective immigration control. Given that it was the case of EB (Kosovo), with its five year delay, which the decision maker considered, it was reasonable for the decision maker to conclude that there was no significant delay in the present case.

[56] That the petitioner had developed a private life over time, and the existence and nature of his personal and family relationships were noted and so the decision does not fall foul of what Lord Bingham said in paragraph 14 of EB (Kosovo). It is clear that neither the petitioner nor his fiancé have been misled by the passage of time into losing a sense of impermanence about their relationship. I was told that they both recognise its potential impermanence and have refrained from living together or getting married for that reason. So there is little, if any, support from paragraph 15 of Lord Bingham's opinion.

[57] In paragraph 16, Lord Bingham stated:

"Delay may be relevant, thirdly, in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control, if the delay is shown to be the result of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes. In the present case the applicant's cousin, who entered the country and applied for asylum at the same time and whose position is not said to be materially different, was granted exceptional leave to remain, during the two-year period which it took the Secretary of State to correct his erroneous decision to refuse the applicant's application on grounds of non-compliance ..."

No distinct argument was advanced in support of paragraph 39 of the petition which complains that to seek to remove the petitioner is unfair and inconsistent with the treatment of his father and brother who arrived 'close to the time of the petitioner'. In fact they arrived eighteen months or so earlier. No detailed information was put forward about their circumstances and the basis on which they were allowed leave to remain. Whilst the petitioner entered the United Kingdom illegally, I was given no information as to the circumstances in which his relatives entered. Given that the petitioner absconded for several years following the refusal of his application in 2003, it seems very unlikely that there could be any merit in seeking to draw an analogy with the comparison which troubled the court in the particular circumstances of EB (Kosovo).

[58] I did not find that the case of Omar added much support to Mr Caskie's argument. That was a case involving a somewhat different issue, deportation for the commission of a criminal offence, in which there was a failure by the Secretary of State timeously to mark an appeal against an immigration decision. In a case which had twice already been decided in Mr Omar's favour, the court refused to grant fresh leave to appeal after a delay of eleven months, applying principles apt to that issue. Omar was decided in its own procedural context and I am not persuaded that the observations made were intended to apply in a case like the petitioner's, particularly given his immigration history.

The second argument

[59] For the foregoing reasons, I conclude that the treatment of this part of the representations for the petitioner at page 10 of the decision letter is to a substantial extent soundly based. Whilst, given the suspension of removals to Iraq, it can be said that it was an error to attribute his not being removed to the petitioner's absconding, that was not a material part of the decision making process. In any event, it was true that the petitioner had absconded and that was a matter legitimately to be taken into account.

The third argument

[60] In ZH (Tanzania) at paragraph 18, in discussing ordinary immigration cases, as opposed to those involving deportation for serious offending, Lady Hale noted that Convention jurisprudence recognised that the starting point was the right of all states to control the entry and residence of aliens before observing:

"... In these cases, the legitimate aim is likely to be the economic well-being of the country in controlling immigration, although the prevention of disorder and crime and the protection of the rights and freedoms of others may also be relevant ..."

The part of her opinion on which Mr Caskie founded was paragraphs 28-33. Blake LJ, on whose opinion in Mansoor Mr Caskie founded, interpreted that part of Lady Hale's opinion at paragraph 35 of his opinion in this way:

"... As Lady Hale has pointed out, general considerations of economic well-being, where other factors are strongly in favour of the claim, are unlikely to be of great weight."

When regard is had to the facts of ZH (Tanzania), and noting that Lady Hale was of the view that that case could only be decided one way, I am not persuaded that she was saying anything more than that in her opinion in that case. There are not factors strongly in favour of the petitioner's claim which are comparable with the case of ZH (Tanzania), and this ground of challenge fails.

The fourth argument

[61] I recognise that the applicant in ZH (Tanzania) had made three unsuccessful claims for asylum, two of them in false identities, having arrived in this country in 1995. Lady Hale regarded the immigration history as appalling. In 1997 ZH formed a relationship with a British citizen and they had two children, born in 1998 and 2001. Both of the children were British citizens who had lived all of their lives with their mother in this country. The parents separated in 2005 but their father continued to see his children regularly. He was diagnosed as HIV positive in 2007, lived on disability living allowance and drank a lot. In 2009, the Court of Appeal had thought that the children could reasonably be expected to follow their mother to Tanzania. It is recorded at paragraph 13 of the decision of the Supreme Court that the Secretary of State conceded that it would be disproportionate to remove the mother given the particular facts of the case.

[62] In Mansoor, the applicant had seven children in the United Kingdom, all with indefinite leave to remain. Her own application for leave to remain was refused essentially because her husband had lost a job and therefore she did not satisfy the Immigration Rules. The additional cost to the public purse caused by her presence was marginal. A number of errors in the decision-making process were identified by the court.

[63] In the present case the arguments in favour of leave to remain are not as compelling as those in Mansoor, where there were no factors adverse to the claim of the sort which are accepted to be present in the petitioner's case. In the present case, the Secretary of State did not consider there to be a family life and did not regard the petitioner's private life to be sufficiently compelling to bring down the balance in his favour. She was of the view that an Immigration Judge would reach the same conclusions.

[64] There is substance in Miss Haldane's submission in response to Mr Caskie's fourth argument. The position of the fifteen year old brother who did not live with the petitioner, but with his grandmother and other brothers, was not the same or analogous to the children in ZH (Tanzania). In this case it was not accepted that there was family life. If the finding that there was a private life (and the relationship with his youngest brother can be treated as an aspect of his private life) required the child's interests to be treated as a primary consideration then that was not done in terms. The proper course would have been to treat those interests as a primary consideration along with other relevant factors, and to consider if they were outweighed by other considerations. There were, however, substantial considerations weighing against the petitioner's claim. Beyond the fact that their father died in 2007, no information was put before the Secretary of State, so far as can be seen from the productions in this case, and no information was put before me by Mr Caskie, to suggest that there was any unusual or special feature to the relationship of the petitioner and his brother, who did not live with the petitioner but with other brothers and his grandmother. I am not persuaded that any error in this respect is so material as to vitiate the decision.

The fifth argument

[65] In assessing this argument, the relevant part of the letter, quoted at paragraph [14] above, should be seen in context. This whole discussion occurs in a passage examining matters from Miss Dougan's perspective in the light of the approach of the House of Lords in Beoku-Betts. It was not being said that return was proportionate because Miss Dougan could go to Iraq with the petitioner, rather his claim that his fiancé could not go to Iraq was being evaluated as part of an evaluation of the whole circumstances, including the extent of their relationship. The relationship was in some respects provisional in light of mutual knowledge of the petitioner's precarious immigration status. The decision maker had rejected the suggestion that the petitioner and his fiancé enjoyed family life in the article 8 sense and rejected that an Immigration Judge would find that there was family life. I consider that finding at paragraph [73] infra. In these circumstances, this observation was of limited significance. Indeed, as can be seen in the passage from the decision letter which I have quoted in paragraph [11] above, the conclusion was reached that even if it were concluded that there was family life, removal would be justified and proportionate.

The sixth argument

[66] Mr Caskie did not suggest that it was wrong to take into account that those family relationships which the petitioner enjoyed in this country would be able to continue through various forms of communication and that this was a factor which could be taken into account in the overall evaluation of proportionality. It would of course alter the potential quality of the relationships, but that is self-evident and did not require to be stated, particularly where the conclusion was reached that there was not family life in the article 8 sense and the decision maker concluded that an Immigration judge would reach the same conclusion. Mr Caskie did not press his point that some qualitative assessment of the relationship required to be stated and in any event it is clear that the decision maker had regard to all of the information put forward on the petitioner's behalf and understood the nature of his relationship with Miss Dougan.

The seventh argument

[67] In the case of KBO, senior immigration judges had overturned an adjudicator on the basis of her treatment of the second Razgar question. That was the context in which they had erred, they had treated question 2 as a stringent requirement when all that was required, was more than a technical or inconsequential interference. I can find no basis for concluding that such an error was made in this case. The decision maker did not accept that there was family life or that an Immigration Judge would so conclude, but did accept that there was private life and that the interference of removal would engage article 8, and so the second Razgar question was answered in the petitioner's favour. This can be seen in the passage from the decision letter quoted at paragraph [7] above.

The eighth argument

[68] MA (Pakistan) was a case involving a married couple with no children in which it was conceded that there was family life between them. There was little or nothing adverse in the applicant's immigration history. The basis of the decision refusing him leave to return was that he should return to make an application for entry clearance which was expected to be granted. The Immigration Judge had in those circumstances concluded that the short time that would be involved meant that it was not disproportionate to require the applicant to return. Despite the fact that he was referred to the House of Lords decision in Chikwamba, the Immigration Judge had not considered the approach taken in that case. He also erroneously applied a test of 'no insurmountable obstacle' standing in the way of return to make an entry clearance application. In that case the Court of Appeal was of the view that any assessment of proportionality required to take account of Chikwamba.

[69] Despite the absence of any explicit application of Chikwamba, there is a full examination of proportionality in the present case. This was not a case, like Chikwamba and MA (Pakistan), where it was anticipated that there should be an application for entry clearance from abroad with a near inevitable prospect of success. The petitioner and Miss Dougan are not married or living together, unlike the couples in Chikwamba and MA (Pakistan), and family life in the article 8 sense was not accepted to exist. In these circumstances, I am not persuaded that the approach taken to Chikwamba in the decision letter was erroneous or that it vitiates the decision.

The ninth argument

[70] In the case of RG (Nepal) on which Mr Caskie founded, RG was aged 22 at the time of the appeal and he had been 20 when he had committed manslaughter. At paragraph 20 it is recorded that:

"... This was a case of a young man who had always formed part of his parents' household both in Nepal and the UK and had never established an independent household of his own. Although he was of the age of eighteen he was still financially dependent upon his father as a student. He was still a young man ..."

The court also said this at paragraphs 26 and 27:

"... nor in a deportation case will the continuing family links of an independent adult of themselves, prevent removal on the basis of a disproportionate interference with the right of respect for that family life.

27. However, the essence of the present case appears to be one of family that have strong mutual links and that have always lived together and who expected to continue to live together in the UK upon completion of the father's military service, the uncle having completed that service and relocated to the UK some years earlier ..."

[71] I recognise that the circumstances of the 'family life' being asserted on behalf of the 38 year old appellant in Kugathas was of a very limited nature indeed. However, some of the dicta in that case have been judicially accepted and applied in subsequent cases. One example is Etti-Agdebola on which Miss Haldane founded. In that case, having noted, in paragraph 19, recent Strasbourg case law which still applied the criterion of dependence, the Pill LJ, who delivered the leading opinion in the Court of Appeal, observed at paragraph 20:

"In JB (India) & Others v The Entry Clearance Officer [2009] EWCA Civ 234. Sullivan LJ, giving a judgment with which Mummery LJ and Lawrence Collins LJ agreed, referred to Kugathas in these terms:

'It is authority for the proposition authority that "further elements of dependency involving more than the normal emotional ties" are required if the relationship between the adult child and his parents is to acquire protection under Article 8: see paragraphs 14 to 19 of the judgment of Sedley LJ and paragraph 25 of the judgment of Arden LJ. In my judgment there was no error in the Tribunal's approach to this question on reconsideration.' "

Two of the judges in that case also observed that family life does not necessarily terminate on a child attaining majority.

[72] In Kugathas, Lord Justice Sedley gave the leading opinion in the Court of Appeal and noted at paragraph 14:

"14. Mr Tam relies in particular on the Commission's decision in S v United Kingdom (1984) 40 DR 196. At page 198 of the report, the Commission said:

'Generally, the protection of family life under Article 8 involves cohabiting dependents, such as parents and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults, a mother and her 33 year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties.

This, while it is not black-letter law, sets out what I would accept is a proper approach.' "

I quote below his paragraphs 17-19 and paragraphs 24 and 25 of the opinion of Arden LJ:

"17. Mr Gill says that none of this amounts to an absolute requirement of dependency. That is clearly right in the economic sense. But if dependency is read down as meaning 'support', in the personal sense, and if one adds, echoing the Strasbourg jurisprudence, 'real' or 'committed' or 'effective' to the word 'support' then it represents in my view the irreducible minimum of what family life implies. It may be that, for a time in Germany, that minimum was reached, as between the appellant and his family there; but that time has gone.

18. I would add, for completeness, that it is probable that the natural tie between parent and infant is a special case which may in some cases supersede any need for a demonstrable measure of support: see Boughanemi v France [1996] 22 EHRR 228 at paragraph 35.

19. Returning to the present case, neither blood ties nor the concern and affection that ordinarily go with them are, by themselves or together, in my judgment enough to constitute family life. Most of us have close relations of whom we are extremely fond and whom we visit, or who visit us, from time to time; but none of us would say on those grounds alone that we share a family life with them in any sense capable of coming within the meaning and purpose of Article 8.'

Arden LJ

'24. There is no presumption that a person has a family life, even with the members of a person's immediate family. The court has to scrutinise the relevant factors. Such factors include identifying who are the near relatives of the appellant, the nature of the links between them and the appellant, the age of the appellant, where and with whom he has resided in the past, and the forms of contact he has maintained with the other members of the family with whom he claims to have a family life.'

25. Because there is no presumption of family life, in my judgment a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties: see S v United Kingdom (1984) 40 DR 196 and Abdulaziz, Cabales and Balkandali v United Kingdom [1985] 7 EHRR 471. Such ties might exist if the appellant were dependent on his family or vice versa ..."

[73] Having regard to the circumstances of this case, and the whole of the opinion in Kugathas, the case law on which it was based, and how it has been interpreted and applied in the cases to which I was referred, I am not persuaded that the Secretary of State erred in concluding that a new Immigration Judge would not accept that the petitioner had established a family life in the United Kingdom. That was a finding that was open to the Secretary of State on the material before her and she did not materially misdirect herself in law in reaching that conclusion. She went on to examine the question of proportionality on the hypothesis that family life was accepted to be established and rejected that removal would be disproportionate when regard was had to the whole circumstances including the petitioner's immigration history, or that an Immigration Judge would so find.

[74] I am not persuaded by Mr Caskie's submission that in her consideration of Beoku-Betts the Secretary of State had erred by treating the attaining of age 18 as terminating family life. The petitioner had asserted that he enjoyed family life with his brothers and, their age was a relevant factor in evaluating the position and it was noted. Nor am I persuaded that there was a further failure to consider private life. It had already been accepted that the petitioner had a private life in this country and in the paragraph complained of there was recognition that he could maintain these relationships through various forms of communication.

The tenth argument

[75] On the basis of the head-note from the case of MB, and in the absence of any other argument or reference to authority, I am not persuaded that the Secretary of State was in error by not analysing this case as a 'near miss.' The cases in which that has been considered a relevant criterion seem generally to be cases where there is a narrow failure to meet a qualification in the Immigration Rules, having enough money to reach a stipulated threshold at certain times being one example. Pankina and Others v Secretary of State for the Home Department [2011] 1 QB 376 at paragraph 46; Secretary of State for the Home Department v MM (Pakistan)
[2011] Imm AR 351.

The eleventh argument

[76] I preferred Miss Haldane's submissions on this point. Even focussing on the passage referred to by Mr Caskie, I note that it proceeds on an acceptance that there was a private life, and the decision maker considered what the position would be if there were a family life, which is what the material founded on by the petitioner was designed to demonstrate. On considering the decision letter as a whole, it is plain that material favourable to the petitioner was noted and considered and was not left out of account.

The twelfth argument

[77] Mr Caskie was of course correct in submitting that corroboration was not required as a matter of law. If the letter demonstrated that the decision maker thought that corroboration was required, and rejected information on that basis, then there would be an error, albeit there would remain the question of materiality. After the sentence complained of, the observation is made that her mother's condition had not been referred to in Miss Dougan's statement which was put forward in support of the petitioner's claim. In that situation, it might be that what the decision maker had in mind was that an absence of corroboration, where it would not be difficult to find, might go to the weight of the evidence. The fact that it is also noted that there is another daughter who might be in a position to care for Miss Dougan's mother, rather suggests that this information was not rejected. In any event the decision maker had already rejected that there was family life, and had rejected that an Immigration Judge would find there to be family life, conclusions which were open to the Secretary of State and in relation to which I have concluded that she did not err. Accordingly, even if there were an error in the passage complained of, it would not be material.

The thirteenth argument

[78] The decision maker plainly understood what was required by the case of WM (DRC) and made repeated and explicit reference to consideration of issues from the perspective of an Immigration Judge. Acceptable reasons are given on each occasion for the conclusion as to what an Immigration Judge would decide and I am not persuaded that there was error in this respect.

Decision
[79] For these reasons I am not persuaded that there is any basis for the court to intervene. Having considered the criticisms advanced both individually and cumulatively, I conclude that the Secretary of State's decision of 14 December 2010 satisfies the requirement of anxious scrutiny and that her decision not to treat the representations as a fresh claim was not unreasonable or otherwise unlawful. I shall therefore repel the plea in law for the petitioner and sustain the first plea in law for the respondent and refuse the petition. I reserve in the meantime the question of expenses.